Law 12Sentencing and the Correctional Systemms. Ripley
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Law 12Sentencing and the Correctional SystemMs. Ripley
TYPES OF SENTENCES (Learning About Law, Buckingham, p.210-
After hearing the charges against the accused person, hearing testimony about the incident leading to the charges, and reading the pre-sentence report, the judge may order a number of sentences. The sentences that may be imposed for offences in Canada are limited by section 12 of the Canadian Charter of Rights and Freedoms, which reads
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
This means that sentences must be fair and reasonable. Every sentence in Canada must meet this standard.
DISCHARGES
The most lenient sentence a judge can order for an offender is a discharge. Discharges can be granted only when the penalty for the offence is less than 14 years' imprisonment and when the Criminal Code does not require a minimum penalty. There are two kinds of discharges: absolute and conditional.
An absolute discharge is effective immediately and has no conditions attached to it. A conditional discharge has specific terms attached to it that must be met by the offender. During the term of the conditional discharge, the offender's activities are; monitored by a probation officer. If the offender fails to fulfill the terms and conditions in the probation order and this is brought to the attention of the Court, the discharge will not be granted. The offender may be sentenced for the initial charge and, depending on the terms of conditions breached, he or she may also be charged with breach of probation.
The legal effect of a discharge is that the offender is deemed not to have been convicted, although a record is kept by the police that a discharge was granted. A discharge may be an appropriate sentence where the circumstances of the offence are out of proportion with the penalties allowed by law. For example, a discharge may be an appropriate sentence when a minor offence is committed in circumstances that the Court determines to be foolish or ill-advised. Generally, a discharge may be granted for a
First offence if it appears unlikely that the person will commit another offence.
A discharge may also be considered appropriate where the publicity attached to the case is considered by the Court to be enough of a penalty when granting a discharge; the judge must consider whether it is in the best interests of the offender and of the public.
SUSPENDED SENTENCE
A suspended sentence may be imposed on the convicted person in cases where there is no minimum punishment required by the Criminal Code_ A suspended sentence may be used in situations where the judge does not want to impose a harsher sentence but feels that the offender should be kept aware of the possibility of a harsher sentence. It is not the sentence that is suspended. Rather, it is the act of passing the sentence on the accused that is withheld. This form of sentence occurs when the Court decides not to impose a fine or imprisonment, but rather to hold back from sentencing the convicted person. It is most frequently ordered for first time offenders of minor crimes who are unlikely to reoffend in the community while serving the suspended sentence. As long as the offender does not commit another offence or violate the conditions set down by the judge, he or she will not be brought back before the Court.
If the offender breaches one or more of the terms or conditions, then he or she will be called back to court and a judge could order a harsher punishment, including a term of imprisonment. In addition to being resentenced for the original offence, the offender could also be charged with the additional offence of breach of probation.
A suspended sentence differs from a discharge in that the offender has a criminal record for the offence, and a probation order may be attached for a period of up to three years from sentencing.
PROBATION
Probation comes from the Latin term probario, which means "to prove." While on probation, an offender is required to prove to the Court that he or she will not reoffend and that the terms of the probation order are being met. This sentence is supervised in the community by a probation officer, who is responsible for monitoring the offender's behavior. No probation order can be in effect for more than three years from the date it comes into force. Probation can be imposed in addition to a fine or to follow a term of imprisonment, as long as the prison term does not exceed two years.
A probation order may include several provisions. Generally, the order will specifica11\ - state that the offender must keep the peace jfleaning he or she must not commit another criminal offence). It may also include some of the following terms:
not associating with known criminals; staving away from a particular location or area,
reporting to a probation officer on a regular basis;
providing for the support of a spouse or other dependant;
prohibiting the use of alcohol or nonprescription drugs;
paying for damage that was done as part of the offence;
doing community- service work; obtaining counseling.
BINDING-OVER
Another alternative to imprisonment is binding-over. This sentence may be imposed on an offender who threatens a person, his or her family, or property. The individual who has suffered the threat may lay an information before the Court. When the offender and the victim appear before the judge, the Court may order the offender to keep the peace, particularly in regard to the person with the complaint, for up to 12 months. The offender may also be required to enter into a recognizance, either with or without sureties. A recognizance is an agreement by the accused to pay if she or he fails to appear for trial. A surety is a guarantee by a third person who signs the recognizance and is responsible for paying a sum of money if the accused does not appear for trial. If the offender fails to keep the peace for the specified time period, the money deposited with the Court may be forfeited.
FINES
Fines are specific amounts of money that convicted offenders are required to pay to the courts. They may be paid immediately, or the judge may allow a fine to be paid over a specified time period. If the fine is not paid as ordered, the offender will have breached a court order and may face a term of imprisonment. If the offender is unable to pay the fine, he or she may be permitted to do community service work instead.
There are many advantages in using fines as a punishment. They are a simple and uncomplicated response to an offence; they do not cause expense to the public, and they reduce the burden on the prison system. For the offender, there is no social dislocation and less disgrace than with most other penalties. Fines are especially useful in preventing a criminal from making a profit from crime.
Critics of the use of fines for punishment note that a fine may not mean equal punishment for all offenders. For example, someone who is wealthy can often easily afford to pay a fine, while someone who is poor may have a great deal of difficulty in paying a fine. Others have argued that, in some cases, fines may be too small in relation to the offence.
Fines may be imposed in addition to prison or instead of imprisonment for an offence where the maximum term of imprisonment is five years or less. If the maximum sentence for an offence is more than five years, the fine can be imposed in addition to, but not instead of, imprisonment.
RESTITUTION
An alternative sentence to a fine is a court order to pay restitution to a victim, when an offender has stolen, destroyed, or damaged another person's property, the Court may order the offender to pay monetary compensation to the victim for the losses suffered. These losses may also be the result of expenses that occurred because the victim was injured
In ordering restitution, the Court must consider the actual losses suffered by the victim as well as the ability of the offender to pay compensation. This may be addressed in a victim impact statement. The purpose of this statement is to detail for the Court all the losses suffered by the victim that arose from the offence committed. Restitution can be in the form of monetary compensation paid over a specified period of time, or work that replaces or restores the damaged property. The penalty for ignoring a restitution order is imprisonment.
SUSPENSION
Some offences are best dealt with by the suspension of a privilege, such as a licence to drive a motor vehicle or to operate a particular type of business. By suspending a certain privilege, the judge forces the offender to see that possessing the licence is not a right. The offender must use the privilege within the rules that are specified by law. The advantage of suspensions is that they are inexpensive and fast to administer. In most cases of drivers licence suspensions, for example, drivers are required to turn their licences in to the Court before leaving the courtroom. Suspensions can be extremely effective if properly supervised because of the inconvenience and, possibly, monetary losses suffered by the offender. Usually, a suspension is ordered for a specific time period, but under extreme circumstances, the suspension of a privilege can be effective for the life of the offender.
PROHIBITION ORDERS
Prohibition orders may limit the activities and freedoms of a convicted person. For example, someone convicted of threatening others with a weapon might be prohibited, or legally restricted, from owning a gun or having access to explosives.
COMMUNITY SERVICE ORDERS
Community service orders require an offender to provide useful work to the community. The judge orders the offender to work at a particular community service for a specific period of time. Community service orders have included working in a retirement home, performing for free in a rock concert for the benefit of a charity, and cleaning up parks. The advantage to the community is that it receives the offender's work contribution for a specified number of hours or days. Tax dollars are saved by keeping the offender out of prison and by receiving the labour for free. Community, service orders are intended to force the offender to repay the debt for the crime committed directly back to the community in a meaningful way. The advantage to the offender is that she or he may acquire a new awareness of the need for volunteer labour in the community and may be deterred from committing other criminal offences in the future. This type of sentence may be particularly useful when someone with a long record shows signs of a change in lifestyle to become crime –free.
DIVERSION
Alternative measures programs, which do not use the court process, are available in most provinces. These programs, sometimes called diversions, allow offenders to avoid appearing in court altogether. The purpose of these programs is to keep the offenders from identifying with criminals, to make them accountable to those in the community who were harmed, and to avoid a backlog of cases in the courts. In order to be diverted from the court process, the offence must be minor and the person must accept responsibility for it. In diversion, the offender makes restitution for the harm done by, for example, performing community service work or paying for financial losses. The Crown can recommend diversion where there is enough evidence to prosecute the accused person but where it is not in the person's best interests to go through the court process.
ELECTRONIC MONITORING
Electronic monitoring is another alternative to imprisonment. This punishment involves attaching an electronic device to the offender's wrist or ankle that allows authorities to monitor his or her location. In this manner, supervision staff can determine the location of an offender at all times. Some people have criticized this type of sentence; however, there are some enormous advantages in using electronic monitoring in comparison with imprisonment_ It is more economical to the government, it frees up room in overcrowded prisons and penitentiaries, and it allows offenders to remain employed and live with their families. This type of punishment is most suitable. for offenders convicted of nonviolent crimes who do not pose a risk to themselves or the community.
IMPRISONMENT
Imprisonment is the penalty that most people associate with sentencing offenders. How-ever, the current focus in sentencing in Canada is not on imprisonment. Instead, efforts are made by judges and by those in the criminal justice and corrections system to use the least amount of intervention necessary to address the criminal activity of an offender. The emphasis is now on assisting offenders through treatment and supervision in either prison or community settings while controlling the risk to society. Safely reintegrating offenders into the community as lawabiding citizens is considered the key to the long-term interests of society.
The length of imprisonment depends on many factors, including the seriousness of the crime, the penalties that are defined in the Criminal Code for specific crimes, and the background of the offender. For summary conviction offences, the period of imprisonment is up to six months. For some indictable offences, the maximum sentence is life. The Criminal Code specifies standard maximum terms for imprisonment depending on the offence; these standard lengths are 90 days, 2 years, 5 years, 10 years, 14 years, and life.
Each province maintains its own prison system. The offenders imprisoned in these systems have generally been sentenced to terms of less than two years. Offenders sentenced to more than two years usually serve their sentences in a federal penitentiary. In some cases, offenders in penitentiaries apply for permission to serve some or all of their sentences in provincial prisons.
Offenders convicted for two or more crimes may be ordered to serve sentences that are either concurrent or consecutive. An offender serving concurrent sentences is imprisoned for both or all of the sentences so that the sentences overlap one another. For example, an offender sentenced to two three-year sentences to be served concurrently would be imprisoned for one three-year period. Concurrent sentences may be ordered at the judge's discretion. This can occur for several reasons. For example, when an offender has committed a series of similar offences over a short period of time, the offences may be considered as a single offence by the judge. With consecutive sentences, the offender serves one sentence after the other. This would mean that the offender given two three-year sentences would serve six years in prison.
If a sentence is for less than 90 days, it may be served on an intermittent basis. For example, the judge may allow the offender to serve the sentence on weekends and/or at night. Generally this type of sentence is given to enable the offender to keep her/his job or to maintain family responsibilities for the duration of the sentence.
Indefinite Sentences
There is one type of offender that our society believes may be incapable of rehabilitation: the dangerous offender. This type of offender is considered so dangerous to the public that the Court can impose an indefinite sentence. That means that there is no mandatory point of release for the person - the length of the sentence is not fixed - although he or she may apply for parole. Dangerous offenders remain in prison until a parole board believes that they can be released safely into the community. Indefinite sentencing emphasizes the protection of the community. The consequence is a reduction of the rights of the offender.
Currently; section 753 of the Criminal Code allows the Crown to apply to have a convicted, but yet unsentenced person, declared a dangerous offender. After serving three years, the parole board is required to review the dangerous offender's condition and history After this initial review, the offender's application for parole is considered at intervals of two years or less.
Even if the dangerous offender is released, the indefinite sentence does not expire. The eventual release of a dangerous offender into the community requires ongoing parole supervision for the rest of his or her life.
An indefinite sentence is a type of preventive detention imposed when an offender has been convicted of a serious injury offence. He or she must pose a threat to the life, safety, or physical or mental well-being of other people. One of three standards defined in section 773(a) of the Criminal Code must be met:
753. .
(a) (i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour, or